Irfan v Western Sydney Local Health District [2023] NSWSC 845

Supreme Court New South Wales

Medium Neutral Citation: Irfan v Western Sydney Local Health District [2023] NSWSC 845 Hearing dates: 17 July 2023 Date of orders: 21 July 2023 Decision date: 21 July 2023 Jurisdiction: Common Law Before: Harrison J Decision: (1) Vacate the hearing of the proceedings scheduled to commence on 6 November 2023. (2) Grant leave to the plaintiffs to file and serve an amended statement of claim in the form of the draft annexed to the affidavit of Yevgeny Bagrin affirmed 23 June 2023 and marked "GG". (3) Order that the plaintiff serve the amended statement of claim upon each of the defendants within 14 days. (4) Direct the second defendant to file its defence thereafter in accordance with the rules. (5) Dismiss the plaintiffs' application for leave to rely upon the reports of Dr Ron Brooder dated 2 March 2023 and 31 March 2023 and Professor Bernard Yan dated 22 March 2023. (6) Save to the extent that the parties have otherwise provided for costs by agreement made between or among them, order that the costs of the applications before me be the plaintiffs' costs in the proceedings. (7) Grant liberty to the parties to apply to me by arrangement with my Associate. (8) List the proceedings before me for directions, if required, on Friday 3 November 2023 at 9.30am. Catchwords: CIVIL PROCEDURE – joinder of new party – complex negligence claim regarding treatment of stroke patient – where proposed new defendant ambulance service who responded to plaintiff's deterioration – where hearing already set down, but over the plaintiffs' vigorous objection – where objection to a hearing date in belief that evidentiary picture not yet fully clear – where proposal to join second defendant arises from that belief's vindication CIVIL PROCEDURE – service of new specialist reports – Uniform Civil Procedure Rules r 31.28 – "exceptional circumstances" – substantive question really whether new expert needed to opine on hospital protocol CIVIL PROCEDURE – commentary on nature and purpose of Uniform Civil Procedure Rules Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 58 Uniform Civil Procedure Rules 2005 (NSW) r 1.12, 31.28 Cases Cited: Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433 Dickson v State of NSW [2021] NSWSC 234 Hannam v State of New South Wales (No 3) [2022] NSWSC 498 Texts Cited: Practice Note SC CL 07 Category: Procedural rulings Parties: Muhammad Irfan (First Plaintiff) Salva Anwari (Second Plaintiff) Western Sydney Local Health District (Defendant) Health Administration Corporation (Ambulance Service of NSW) (Proposed Second Defendant) Representation: Counsel: D Higgs SC (Plaintiffs) R Cheney SC with T Berberian (Defendant) B Bradley (Proposed Second Defendant)